Reinstein, Land & Katz v. Clune

Opinion

THE COURT. This matter was certified to this court pursuant to rule 63(a) and (c), California Rules of Court. The question presented is succinctly set forth in the opinion rendered by the appellate department of the superior court. Since we agree with both the reasoning and the result reached in the opinion authored by Judge Martin Katz and concurred in by Judges James Whyte (P. J.) and Delbert Wong of that department, we hereby adopt that opinion as the opinion of this court:

Plaintiff’s assignors were employed as attorneys by defendant, the guardian of the estate of an incompetent person, to represent him in guardianship matters. Nothing was said by the parties either as to the amount or method of payment of the attorney’s fees. In 1968, the attorneys filed in the guardianship proceedings a petition for allowance of fees for both ordinary and extraordinary services, and were awarded $3,500, which was paid. In 1969, they sought an additional allowance of fees in the amount of $4,706.26,1 and were awarded by the court $1,025, which was also paid. Thereafter, the present action was commenced against defendant personally to recover on the theory of quantum meruit for legal services rendered to him. The sum prayed for represented the difference between the attorneys’ fees requested and allowed by the court in 1969, plus $750 for subsequent services.

[323]The trial court found that all services for which recovery was sought were rendered to defendant as guardian of the estate of the incompetent, from which services defendant received no personal benefit, and that the attorneys expended 88% hours “in performing services for defendant as guardian of said estate, for which [defendant] was charged at the rate of $50 per hour, totaling $4,431.25, for which plaintiff has not been paid.” It concluded that defendant was not indebted to plaintiff, and rendered judgment for defendant.

The question presented on this appeal is whether, since the adoption of Probate Code section 1556.1 in 1951, the guardian of the estate of an incompetent is personally liable for the attorney’s fees in the absence of his agreement to be so bound. It appears to be one of first impression.

Prior to 1951, an attorney for a guardian could not enforce his claim for compensation against the ward or his estate, and the guardian was personally liable for the fees of the attorney. (Tasker v. Cochrane (1928) 94 Cal.App. 361 [271 P. 503]; McKee v. Hunt (1904) 142 Cal. 526 [77 P. 1103]; Morse v. Hinckley (1899) 124 Cal. 154 [56 P. 896]; Hunt v. Maldonado (1891) 89 Cal. 636 [27 P. 56].) Attorney’s fees were expenses of the guardian, for which he was entitled to an allowance or reimbursement if the court deemed them reasonable and necessary. (McKee v. Hunt, supra; Hunt v. Maldonado; supra.) In 1951, section 1556 of the Probate Code was amended and section 1556.1 was added thereto to provide for the fixing by the court, upon petition of the guardian or his attorney, of the compensation of the attorney for services rendered to the guardian and for the payment of such compensation directly out of the estate of the ward. (Estate of Ehle (1968) 267 Cal.App.2d 24, 28 [72 Cal.Rptr. 474]; cf. Guardianship of Boxley (1953) 115 Cal.App.2d 483 [252 P.2d 348].) Section 1556, theretofore providing that the guardian shall be allowed the amount of his reasonable expenses and such compensation as the court in which his accounts are settled deems reasonable, was amended by adding a paragraph which, so far as here material, reads: “At any time after the filing of the inventory and appraisement, . . . any guardian may petition the court for an order fixing and allowing his compensation for services rendered to that time and for an order fixing and allowing compensation to his attorney for services rendered to the guardian .... Upon the hearing the court shall make an order allowing such compensation to the guardian for services rendered to the estate of his ward and to his attorney for services rendered to the guardian as the court may deem proper, and compensation so allowed shall thereupon be charged to the estate of the ward.” (Italics added.)